Marsh v Mukhin
[2021] ACTSC 36
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
| Case Title: | Marsh v Mukhin |
| Citation: | [2021] ACTSC 36 |
| Hearing Date: | 11 March 2021, 12 March 2021 |
| Decision Date: | 12 March 2021 |
| Before: | Elkaim J |
| Decision: | Bail granted on agreed conditions |
| Catchwords: | APPEAL – Appeal from Magistrate’s Court Sentence – Urgent Bail Application Pending Appeal – Notice requirements – bail |
| granted | |
| Legislation Cited: | Bail Act 1992 (ACT) Court Procedure Act 2006 (ACT) Magistrates Court Act 1930 (ACT) |
| Parties: | Luke Arthur Marsh (Appellant) |
| Alexey Mukhin (Respondent) | |
| Representation: | Counsel |
| J Cooper (Appellant) | |
| K McCann (Respondent) | |
| Solicitors | |
| Aboriginal Legal Service (Appellant) | |
| ACT Director of Public Prosecutions (Respondent) | |
| File Number: | SCA 09 of 2021 |
| ELKAIM J: |
1. Yesterday, Magistrate Morrison sentenced the applicant to imprisonment. Accordingly he was immediately taken into custody.
2. Later in the day the applicant filed a notice of appeal seeking orders that the conviction originally recorded by the Magistrate on 18 September 2020 be set aside, together with the sentences imposed, and the whole of the matter be returned to the Magistrates Court to be dealt with according to law.
3. The applicant wishes to have bail pending his appeal being heard. He is entitled to make such an application under s 216 of the Magistrates Court Act 1930 (ACT) (the MCA). To that end, late yesterday afternoon the applicant listed the matter for urgent consideration of the request for bail.
4. The applicant is entitled to make the application in this court pursuant to s 20B of the Bail Act 1992 (ACT).
5. The difficulty that arose yesterday afternoon was whether or not the applicant could proceed with his bail application notwithstanding that he had not given the two days notice required for such an application by part 6.2 of the Court Procedures Rules 2006 (ACT).
6. The applicant acknowledged that he had not complied with the notice requirement but said, in effect, that the basis for his bail application was so compelling that the notice requirement should be waived.
7. The Crown responded that it intended to oppose bail and also any waiver of the normal requirements. The Crown further, and reasonably, said that it needed time to consider the application. By way of a degree of compromise I listed the matter today at 2:15pm to hear the application, but limited the basis for the application to the asserted compelling reason referred to above.
8. Turning now to this reason: When the matter came on before the Magistrate on 18 September 2020 the applicant did not appear. Having satisfied himself that the
applicant was aware of the hearing, the Magistrate heard the informant’s evidence and
found the applicant guilty. The conviction related to a charge of contravening a
protection order.9. The matter was then stood over and ultimately came on for hearing before the Magistrate for sentencing yesterday. The Magistrate sentenced the applicant for the offence that he had found proved in September last year to a period of six months imprisonment commencing on 27 January 2021, but then suspended on 26 April 2021, provided the applicant entered a Good Behaviour Order (GBO) for a period of 12 months.
10. In addition, yesterday, the Magistrate found that as a result of the applicant having committed the above offence he was rendered in breach of six separate GBOs. His Honour took no action in respect of two of the breaches but in respect of the other four he sentenced the applicant to, individually, three month terms of imprisonment commencing on 27 January 2021 and ending on 26 April 2021. His Honour obviously envisaged that the applicant would be released on 26 April 2021 having completed all of the periods of full-time custody to which he had been sentenced.
11. Regrettably when the sentencing hearing took place yesterday, the Magistrate’s
attention was not drawn to s 110(7), which states:
The court must not sentence a defendant to imprisonment for an offence if the court has heard and decided the case under subsection (1)(a) in the absence of the defendant.
12. The applicant says that the Magistrate, having heard the matter in his absence pursuant to s 110(1), was not able, as a matter of law arising from subsection (7), to sentence the applicant to a term of imprisonment.
13. The Crown, in response to this apparently straightforward point, said that a distinction could be drawn between the hearing in September 2020, when the applicant was absent, and the sentencing hearing yesterday, when the applicant was present.
14. The Crown also raised a preliminary point. This was that it was not necessarily the case that the Magistrate had proceeded to hear the case in September 2020 pursuant to s 110(1). It was equally possible, said the Crown, that the Magistrate had proceeded under s 85 which allows a court to hear a criminal case in the absence of a party. Further s 85 imposes no restraint, of the type seen in s 110(7), on the Magistrate.
15. The first issue to be decided therefore is whether or not the Magistrate had heard the matter under s 85 or s 110. I have had access to the court file and the bench sheet in respect of 18 September 2020. I have also been provided with a transcript of the proceedings on that day. Neither assists on this threshold issue. The only matter that can be gleaned from the transcript was that his Honour observed (separately):
I can’t take any shortcuts in terms of the process. (Transcript page 5)
On the basis of the absence of any supporting evidence before me in support of his claim, I think I can fairly decide to proceed, in any event. I suppose that involves a conclusion that
it’s not contrary to the interests of justice to do so. (Transcript page 13)
16. It is impossible for me to reach any conclusion as to whether the Magistrate proceeded under s 85 or s 110. Nevertheless it is clear that his Honour was concerned to proceed
“in the interests of justice” which is, at least, consistent with the terms of s 110(7). It
could hardly be in the interests of justice to sentence a person to imprisonment when
that person has taken no part in the findings of fact which led to the conviction.17. There is however a more persuasive reason to think that s 110 applies. This arises from s 108A. The Crown accepted that the conditions of this section applied to the current case, namely that the applicant had been charged with an indictable offence and the Court had decided to dispose of it summarily.
Following the existence of the above conditions, s 108A then says that “… this part
applies…”. Section 110 exists within “this part”.
19. I am satisfied therefore that there is at least a good argument that s 110 applies here. The next question is whether, as submitted by the Crown, s110(7) applied in circumstances where the applicant had not been present at the primary hearing but was present at the sentencing hearing.
In my view the Crown’s position cannot be accepted. Firstly, as already referred to, the
applicant’s absence at the fact-finding stage precluded him from influencing the facts
which might ultimately have been relevant to the sentencing. Secondly the “case” referred to in subsection (1) cannot logically be distinguished from the “case” referred
to in subsection (7).
21. It follows therefore that if I am correct in my approach the Magistrate should not have imposed a sentence of imprisonment. On this basis it is arguable that the applicant should not have proceeded by way of a bail application but rather by way of a writ of habeas corpus.
However because I recognise the possible merit in the Crown’s argument, especially
in regard to s 85, I am of the view that the appropriate way to proceed is to grant the
applicant bail and allow his appeal to take its course.23. Accordingly the applicant is granted bail on the conditions agreed by the parties. In addition I make the orders set out in the Short Minutes of Order dated 12 March 2021.
I certify that the preceding twenty-three [23] numbered paragraphs are a true copy of the Reasons for Judgment his Honour Justice Elkaim
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